A Rusike & 24 Others V Bindura Nickel Corporation

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/121/2014
HARARE, 06 FEBRUARY 2014
CASE NO. LC/H/121/2014
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/121/2014

HARARE, 06 FEBRUARY 2014 &   		    	     CASE NO. LC/H/246/13

14 MARCH 2014

In the matter between:-

A RUSIKE & 24 OTHERS 					Appellants

And

BINDURA NICKEL CORPORATION				Respondents

Before The Honourable P. Muzofa, Judge

For Appellants 		-	Mr. P. Musendo (Legal Practitioner)

For Respondents		-	Mr. S. Sadomba (Legal Practitioner)

MUZOFA J:

This is an appeal against the determination of the Respondent’s Disciplinary and Grievance Committee, the “Committee”

The Appellants were employed by the Respondent a mine in different capacities.  When the Appellants reached the retirement age of sixty years, Respondent retired them in terms of the Mining Industry Pension Fund Rules included in Statutory Instrument 771/82 in January 2010.  Prior to retiring the Appellants the Respondent had sought to retrench the Appellants.  The retrenchment and the retrenchment package was agreed upon and approved.  However the Respondent abandoned the process as it could not afford it.  It was during these negotiations for retrenchment that the Appellants reached their retirement ages.  Thereupon the Respondent retired the Appellants.  The Appellants raised a grievance before the Committee.  The main issue was the unfair retirement of the Appellants in that Respondent had abandoned the approved retrenchment by the Minister.  The request was for the Respondent to consider the Appellants’ “plight with compassion”

The Committee made a finding that the retirement process was fair and that the terminal benefits be paid according to the National Employment Council minimum rates.  The Appellants then noted an appeal to this Court against the said decision.

The grounds of appeal raised two issues being the rate of payment and the date of retirement. Counsel for both parties conceded that the rate of payment was the National Employment Council minimum rates, leaving the court to determine one issue, the date of retirement.

It was submitted for the Appellants that the retirement date should be the date of the resolution this case.  The basis of the submission being that the Respondent prejudiced the Appellants by proposing to pay the retirement packages based on an exemption that did not include Appellants.  To this extent the Respondent was responsible for holding the matter in abeyance.  It was further argued that had the Respondent offered the Appellants a package calculated on the N.E.C. rates the Appellants would not have been prejudiced.  The Appellants would have been paid in 2010 as opposed to being paid in 2014.  For the Respondent it was submitted that the Appellants were retired with effect from the 31st of January 2010.  From that date the Appellants did not report for duty.  Therefore there is no scope in awarding a package beyond the date they ceased duty.  Further to that it was submitted that the Appellants raised a grievance in June 2010 yet they had been retired on the 31st of January 2010.  According to the Respondent there is an artificial dispute, the Respondent had offered to pay the Appellants’ retirement package using the N.E.C. rates as from the 18th of June 2010.  The Appellants refused the offer hence the long process.  The delay was not occasioned by the Respondent.

The court therefore has to address one issue; at what point should the Appellants be retired.  According to Statutory Instrument 771/82 of the Mining Industry Pensions Fund Section 19 thereof the normal retirement age is sixty years.  From the documents filed of record it is evident that all the Appellants had attained the age of sixty.  It was not submitted otherwise by the Appellants.  What is also clear and not in dispute is that all the Appellants were served with the notices of termination within two to three months of the termination dates.  It is my respectful view that the provisions of the Mining Industry Pension Fund are not ambiguous.  They are very clear.  The retirement age is sixty years, there are exceptions and none of the Appellants fall within the exceptions.  All of the Appellants had attained the age of sixty as at 31 January 2010.  So the Respondent was entitled to retire them in terms of the said Statutory Instrument to make a proposition otherwise would be absurd.  I do not agree with Counsel for the Appellants’ proposition that the date of retirement should be the date of resolution of this matter.  The only basis for this proposition being that Respondent delayed the finalization of this matter by offering payment rates below the N.E.C. rates.  The court was not referred to any legal basis for the said proposition.  In any event from the documents filed of record it would seem by the 18th of June 2010 the Respondent through the Committee made a decision to pay the terminal benefits at 100% N.E.C. rates.  It then becomes inconceivable that it was Respondent who occasioned the delays in the settling of this matter.  I agree with the submissions made on behalf of the Respondent.  This is a debt and only interest at the prescribed rate can be charged from the date it was due to the date of payment.  It is this court’s finding that the date of retirement is the 31st of January 2010.

From the documents filed of record it would seem that Appellants’ desire was that the Respondent should have retrenched them instead of retiring them.  Counsel for the Appellants did not pursue this point and rightly so.  The Respondent had an option whether to proceed with the retrenchment exercise or not despite the Minister’s approval see Freda Rebecca Gold Mine Holdings Limited v M. Nhliziyo and 18 Others SC 16/13.

From the above findings it s clear that the appeal is devoid of merit.

Accordingly it is ordered that

The appeal be and is hereby dismissed.

The Respondent is ordered to pay each Appellant terminal benefits calculated using N.E.C. rates up to 31 January 2010 with interest at the prescribed rate from that date to the date of full payment.

No order as to costs.

Kamusasa & Musendo, Appellants’ legal practitioners

Gill, Godlonton & Gerrans, Respondent’s legal practitioners